Authorities dealing with the civil liability of inferior court judges
213 An early case dealing with the liability of inferior court judges, frequently cited in later judgments, was The Case of the Marshalsea (1612) 10 Co Rep 68b; 77 ER 1027. The Court of Marshalsea purported to issue a warrant for the arrest of the plaintiff. That court, however, only had jurisdiction over members of the King's Household. The plaintiff was not a member of the King's Household. The plaintiff brought an action of trespass of assault, battery, wounding and false imprisonment against the marshal of the court and the officers who executed the warrant. That action was held to lie against the defendants because the court had no "jurisdiction of the cause" (at 77 ER 1038).
214 There was no clear indication in Marshalsea that the liability of the defendants depended on their knowledge, or ability to ascertain, that the court lacked jurisdiction. As will be seen from the analysis of Marshalsea in later cases, however, it would appear that the defendants may at least have had the capacity to ascertain that the plaintiff was not a member of the King's Household. In any event, some 80 years later, the Court of Common Pleas in Gwinne v Poole (1692) 2 Lutw 935; 125 ER 522 distinguished Marshalsea and held, in comparable circumstances, that the inferior court officers in question were not liable because they did not know, and could not have known, "except by the Confession of the Plaintiff or Defendant", the facts that revealed that the court lacked jurisdiction: see The Reports and Entries of Sir Edward Lutwyche (1718, Nutt and Gosling) at 293-294.
215 In Groome v Forrester (1816) 5 M & S 314; 105 ER 1066, the plaintiff, the late overseer of the parish of Broseley, was convicted of not delivering over to the succeeding overseers of the parish a certain book (the no doubt aptly named "Bastardy Ledger"). Founded on that conviction, the defendants, two magistrates, committed the plaintiff to gaol "until he shall have yielded up all and every the books concerning his said office of overseer, belonging to the said parish" (at 105 ER 1067). The commitment was held to be invalid. The magistrates were only authorised to commit the plaintiff to gaol until he returned the Bastardy Ledger. The question for the court was whether the defendants were liable to an action of trespass and false imprisonment for having so committed the plaintiff. The court found that they were.
216 Having reviewed a number of authorities, Lord Ellenborough CJ held (at 105 ER 1068):
Upon these authorities, and the reason of the thing, we are obliged to pronounce that the commitment made in pursuance of the said adjudication in this case, as well as the adjudication itself, in respect to the imprisonment, being, in this particular, a clear excess of jurisdiction, was not warranted by law, and that the imprisonment thereunder was a trespass in the committing magistrates, for which this action is maintainable; which we cannot but regret, as the facts of the case would have authorised a commitment, if the warrant had been framed in a manner conformable to the powers of the magistrates under the statute.
(Emphasis added)
217 The important point to note is that there was no doubt that the magistrates had jurisdiction to issue a commitment in respect of the Bastardy Ledger. The conviction upon which the commitment was founded was held to be valid. The problem for the magistrates was that the commitment that they issued in respect of "all and every the books concerning his said office of overseer" was too broad. It was only in that respect that they exceeded or acted outside their jurisdiction.
218 Another relatively early case concerning the liability of a magistrate arising from the issue of an invalid warrant was the decision of the Court of Queen's Bench in Caudle v Seymour (1841) 1 QB 889; 113 ER 1372. In that case, a magistrate issued a warrant to apprehend the plaintiff, a surgeon, and bring him before the magistrate to answer a complaint that had been made against him by a child who had alleged that she had been injured by the surgeon as a result of a bad surgical treatment. The problem for the magistrate was that he only had jurisdiction to issue that warrant if the complaint, or information, had been made on oath before him personally. That did not occur. The warrant was issued on the strength of a deposition taken by the magistrate's clerk. The warrant also did not state any information on oath, or state a charge. The magistrate's defence to the action for false imprisonment failed. Lord Denman CJ held as follows (at 1 QB 892-893):
The warrant is clearly insufficient. It does not state any information on oath, or that the fact was really committed. But then it is said (and the argument raises a question of great importance) that although the warrant was irregular, the justice was still protected against an action of trespass, having, as a magistrate, jurisdiction over the offence. But his protection depends (as my brother Coleridge has observed), not on jurisdiction over the subject matter, but jurisdiction over the individual arrested. To give him that jurisdiction there should have been an information properly laid. Here the defendant went with his clerk to the complainant's residence, but never saw her; the clerk took the deposition, but not in his presence. The matter of fact, therefore, on which alone his defence could have been rested, fails; and he has acted without jurisdiction.
(Emphasis added)
219 Thus it would seem that, while the magistrate had jurisdiction to issue warrants to apprehend persons to answer complaints or informations on oath - that is, "jurisdiction over the subject matter" - he acted without jurisdiction in the plaintiff's case because he did not personally take or receive the complaint on oath from the complainant. His defence, which appeared to be akin to a claim of judicial immunity, accordingly failed.
220 The following two cases are of particular importance because they were subsequently referred to and followed in at least one intermediate appellate court in Australia.
221 In Calder v Halket (1840) 3 Moo PC 28; 13 ER 12, the respondent, a judge and magistrate of the Foujdarry Court of the Zillah of Nuddeah, in Bengal, India, issued a form of order which resulted in the arrest and subsequent detention of the appellant. Unfortunately for the respondent, the appellant was a British-born subject and not amenable to the jurisdiction of the court. The appellant brought an action for trespass. The case ultimately found its way to the Privy Council where it was held, in effect, that the plaintiff's action failed on the basis that there was no evidence before the court suggesting that the judge knew, or ought to have known, of the defect of jurisdiction. Baron Parke delivering the advice of the Privy Council stated (at 13 ER 36):
But the answer to the objection to the Defendant's jurisdiction, founded on the European character of the Plaintiff, is, that it does not appear distinctly in the evidence, upon which alone we are to act, whatever our suspicions may be, that the Defendant knew, or had such information, as that he ought to have known of that fact; and it is well settled that a Judge of a Court of Record in England, with limited jurisdiction, or a Justice of the Peace, acting judicially, with a special and limited authority, is not liable to an action of trespass for acting without jurisdiction, unless he had the knowledge or means of knowledge of which he ought to have availed himself, of that which constitutes the defect of jurisdiction. Thus in the elaborate judgment of Mr. Baron Powell, in Gwynn v. Poole (Lutw. App. 1566), it is laid down, that a Judge of a Court of Record in a Borough was not responsible, as a trespasser, unless he was cognizant that the cause of action arose out of the jurisdiction, or, at least, that he might have been cognizant, but for his own fault; which last proposition Mr. Baron Powell illustrates by a reference to the case of the Marshalsea Court [10 Co. Rep. 69], which had jurisdiction only in certain cases where the King's servants were parties, who being all enrolled, the Judge ought to have had a copy of the enrolment, and so would have known the character of the parties.
(Emphasis added)
222 Thus, the Privy Council affirmed the principle that where the defect in the inferior court's jurisdiction arose because of the absence of a jurisdictional fact (in Calder v Halket, the fact that the plaintiff was not a native Indian), the magistrate or judge responsible for making the offending order will only be personally liable if they knew, or ought to have known, or had the means of knowing, that fact.
223 In Houlden v Smith (1850) 14 QB 841; 117 ER 323, a judge of the County Court of Lincolnshire at Spilsby issued a summons which was served on the plaintiff at Cambridge, where he resided, which was outside the district of the Spilsby Court. The summons was beyond jurisdiction as the relevant enactment only authorised a county court to issue a summons within its district. The plaintiff did not appear in answer to the summons and the judge ordered that, for his contempt in disobeying the summons, the plaintiff be committed to Cambridge gaol. A warrant issued accordingly and the plaintiff was arrested and imprisoned. The judge apparently knew that the plaintiff was a resident of Cambridge, however he mistook the law and believed that he had the power and authority to commit the plaintiff to imprisonment. The judge was found to be liable to the plaintiff for false imprisonment, subject to the opinion of the Court of Queen's Bench. That court affirmed the judgment in favour of the plaintiff, its reasons including as follows (at 117 ER 327):
That this commitment was without jurisdiction is plain; that the defendant ordered it under a mistake of the law and not of the facts is equally plain; for it is impossible that he could be ignorant that the plaintiff dwelt and carried on his business in Cambridgeshire, the service of all the processes having been proved to have been made there, and the defendant having originally specially allowed the plaint to be made in his Court, within the jurisdiction of which the cause of action accrued, the defendant (the now plaintiff) residing in Cambridgeshire. This case is not therefore within the principle of Lowther v. The Earl of Radnor (8 East, 113, 119), or Gwinne v. Poole (2 Lutw. Appendix, 1560, 1566), where the facts of the case, although subsequently found to be false, were such as, if true, would give jurisdiction, and it was held that the question as to jurisdiction or not must depend on the state of facts as they appeared to the magistrate or Judge assuming to have jurisdiction. Here the facts of the case, which were before the defendant and could not be unknown to him, shewed that he had not jurisdiction; and his mistaking the law as applied to those facts cannot give him even a prima facie jurisdiction, or semblance of any. The only questions, therefore, are, whether the defendant is protected from liability at common law, being and acting as the Judge of a Court of Record, in which case the plea of not guilty would be sufficient; or whether he is protected by the provisions of any statute, and, if so, whether he can take advantage of such statute, having omitted the words "by statute" in his plea and the margin of it.
As to the first question, although it is clear that the Judge of a Court of Record is not answerable at common law in an action for an erroneous judgment, or for the act of any officer of the Court wrongfully done, not in pursuance of, though under colour of, a judgment of the Court, yet we have found no authority for saying that he is not answerable in an action for an act done by his command and authority when he has no jurisdiction. Here the defendant had not only no jurisdiction to commit the plaintiff to the gaol of Cambridgeshire, but he had no jurisdiction to summon him to shew why he had not paid the debt.
(Emphasis added)
224 The significance of Houlden v Smith is that it is authority for the proposition that an inferior court judge is not immune from an action for false imprisonment where the plaintiff's imprisonment was a result of an order made by the judge in a proceeding in which the judge had no jurisdiction, but assumed he or she had jurisdiction as a result of a mistake of law.
225 The judgments in Calder v Halket and Houlden v Smith were referred to with approval by Griffith CJ in the Supreme Court of Queensland in Raven v Burnett (1895) 6 QLJ 166. It is unnecessary to recount the facts in Raven v Burnett. It suffices to note that the case concerned the personal liability of justices of a court of petty sessions in Queensland to pay damages arising from the setting aside of a judgment in a case they had no jurisdiction to entertain. In the course of considering whether the justices were immune from the suit, Griffith CJ said (at 168):
In order to establish the jurisdiction of an inferior court it must be shown that the court had cognisance of the subject matter of the action, both as to amount and kind, had authority to call the defendant before it, and had authority to make an adjudication of the kind it purported to make. If either of these three elements is wanting, the judgment is ineffective and cannot be pleaded, even against the party who obtains it (Briscoe v. Stephens, 2 Bing., 213). A plaintiff executing the process of an inferior court in a matter beyond its jurisdiction is liable to an action, whether he knew of the defect or not. And judges and officers of the court are liable if they know of the defect (per Willis, J., in Mayor of London v. Cox, L.R., 2 H.L, at p. 263). In the case of a judge, the rule is that he is not liable to an action for acting without jurisdiction unless he had knowledge, or means of knowledge of which he ought to have availed himself, of that which constitutes the defect of jurisdiction (Calder v. Halkett, 3 Moore, P.C. 28, 58). His liability depends, therefore, upon the facts as they appear to him when the matter comes before him for adjudication, and not as they may afterwards be shown to have existed. But an erroneous, though honest, conclusion on a matter of law, on which his jurisdiction over the subject matter, or his authority to make the order which he makes, depends, will not protect him (Houlden v. Smith, 14 Q.B., 841; Agnew v. Jobson, 47 L.J., M.C., 67).
(Emphasis added)
226 It is noteworthy that Griffith CJ considered that an inferior court judge may be liable for acting without jurisdiction not only where the judge had no jurisdiction in respect of the "subject matter of the action", or authority to "call the defendant before it", but also where the court did not have the "authority to make an adjudication of the kind it purported to make". Chief Justice Griffith's judgment was upheld by the Full Court.
227 Both Calder v Halket and Houlden v Smith were also referred to with approval by the Full Court of the Supreme Court of Victoria in Wood v Fetherston (1901) 27 VLR 492. The plaintiff in that case sued two justices of the peace in the Court of Petty Sessions at Prahran for trespass. The justices had issued a warrant pursuant to which the plaintiff was ejected from his residence. His furniture was also damaged in the process of the execution of the warrant. The problem for the justices was that the giving of a valid notice of intention to recover possession by the landlord was a condition precedent to their issue of the warrant. The notice of intention given to the plaintiff was defective because it was served before the plaintiff's tenancy was terminated. The trial judge found that the justices acted bona fide and without malice. The question reserved for the Full Court was whether the plaintiff was entitled to maintain her action in trespass. The Full Court held that the justices had acted without jurisdiction and the plaintiff could proceed with her action. The reasoning of Williams J (with whom Hood and Holroyd JJ agreed) included the following (at 501-502):
The authorities to which we have been referred seem to show this principle - that if justices have acted without jurisdiction, and they know the facts which, it is said, oust their jurisdiction, or ought to know them - have the means of knowing them - then an action of trespass may be successfully maintained against them. Calder v. Halket is a high authority for the proposition that where justices have acted without jurisdiction, and know the facts or have the means of knowing them, then an action of trespass will lie against them. The cases also of Houlden v. Smith and Willis v. McLachlan show that where the facts are before the justices undisputed, and where from these facts which are known and undisputed they come to an erroneous conclusion of law which gives them jurisdiction, that this is no protection and does not excuse them, and for that erroneous assumption of jurisdiction, formed on a mistaken view of the law, they are liable to an action of trespass. It appears to us that this is the case here. The justices here, on their own record, recite the facts proved before them: Notice to quit dated 2nd June, and notice of intention to apply and take proceedings under the Act dated 9th June; so that they show not only the facts, but knowledge of the facts. The obvious inference is that the justices came, upon these facts, to an erroneous conclusion in law - that is to say, they apparently did not know the law that the notice to quit did not expire until midnight on 9th June 1900; and while in that state of ignorance of the law they gave themselves jurisdiction to exercise this summary procedure under the Landlord and Tenant Statute, which they would not have had upon a right conclusion of law upon these facts.
That being the state of things, it appears to us this action will lie. We therefore answer the question thus: That the plaintiff is entitled to maintain this action of trespass.
It is a case of great importance, especially to justices of the peace, and shows the necessity of looking more carefully into questions such as have arisen in this case than the justices concerned have done. Presuming that they knew the law, if they had looked into the dates of these notices which they recite in their warrant they would have seen that the notice of intention to apply and proceed was premature, and could not have been given under the Act until the tenancy had expired. If they did not know the law that fact only shows the necessity for some care on their part in ascertaining the law.
(Emphasis added; footnotes omitted)
228 In summary, Williams J accepted Calder v Halket as "high authority" and followed and applied Houlden v Smith, concluding that the justices were liable for trespass because they made a mistake of law and wrongly concluded that they had jurisdiction to issue the warrant in question. It should perhaps be noted that there was no question that the justices had jurisdiction to entertain the application for the warrant. The problem was that they erroneously concluded that a condition precedent to the issue of a warrant had been met.
229 The judgment in Houlden v Smith was also cited with apparent approval by Davidson J in the Supreme Court of New South Wales in Ward v Murphy (1937) 38 SR (NSW) 85 as authority for the proposition that an inferior court judge cannot rely on judicial immunity in defence to an action for false imprisonment where the judge, acting on a mistaken view of the law, makes an order which the judge had no jurisdiction to make and which resulted in the imprisonment of the plaintiff. His Honour said that "[i]n the case of the [inferior court] judge, ignorance of the law is no excuse, if he was not misled and knew the facts which, in law, would show that there was no jurisdiction" (at [94]).
230 The next case worthy of consideration is the judgment of the Scottish Court of Session in M'Creadie v Thomson 1907 SC 1176. This case is of particular importance because it follows and applies Groome v Forrester and affirms that an inferior court judge is not immune from suit, and may be personally liable, not only where the judge purports to exercise jurisdiction in a matter which he or she had no jurisdiction to entertain, but also where the judge makes an order or imposes a sentence that he or she is not authorised or empowered to make or impose in the circumstances having regard to the terms of the enactment.
231 The facts in M'Creadie v Thomson were that the plaintiff was brought before a magistrate in a police court on charge that she used indecent language to the annoyance of a police constable. The relevant enactment provided that the penalty for that offence was a fine and that, if that fine was not paid, the offender could be imprisoned for up to one month until the fine was paid. The plaintiff pleaded guilty and the magistrate sentenced her to imprisonment for 14 days without first imposing any fine. The plaintiff brought an action for damages against the magistrate. The court rejected the magistrate's plea that the action was incompetent.
232 Delivering the judgment of the court, the Lord Justice-Clerk accepted that an immunity attached to inferior court judges and magistrates "when sitting in judgment", but held that the immunity was limited, or may be lost in certain circumstances. His Lordship reasoned as follows (at 1183-1184):
But while this is so, it is a totally different question whether a Magistrate who when sitting as such does official acts which he has no power to do under a statute in accordance with which he is bound to act, and which judicial acts have the effect of restraining the liberty of the subject, and subjecting him to penalty in his person, is immune from civil consequences for the wrong he has done. I do not think that this has ever been held, and the opposite has been held in many cases. Where a Magistrate, professing to sit as such, and dealing with a case which he has no jurisdiction to deal with at all, commits what is an undoubted wrong upon a citizen, both by principle and practice he is held liable for the wrong done. If that is so, can it be said that a Magistrate who has before him a case which he can competently try under an Act of Parliament on which the complaint is founded, and who, instead of dealing with the case as it is before him, and on conviction awarding such punishment as the Act prescribes and allows, proceeds knowingly to pronounce a sentence which is not competent under the Act of Parliament, and thereby sends a person to prison contrary to the Act of Parliament, - I say, can it be said that he is in any more favourable position than a Magistrate trying a case in circumstances where he has no jurisdiction? In the one case his sentence is illegal, because he has no complaint before him on which he can pronounce a sentence at all. In the other he has a complaint before him, on which he cannot pronounce the sentence which he does pronounce. The wrong is as great in the latter case as in the former. For as well might he have no jurisdiction at all as step outside the jurisdiction which he does possess, to do something which he could not do if he held himself within the limits prescribed to him by the law under which he was called to exercise his jurisdiction. The case of Groome v. Forrester, decided in England, is a forcible illustration of the fact that there may be liability in a Magistrate, not merely for acting without jurisdiction, but for doing an act in excess of the jurisdiction he was called upon to exercise. In that case, as here, the Magistrate could have pronounced an effective judgment, under which incarceration might have taken place. The mistake was made that while the thing complained of was that an overseer had refused to obey an order of Court by delivering up a certain book, he was committed till he should have delivered up "all and every, the books," &c. In that case, the Magistrates were held liable in damages for "a clear excess of jurisdiction".
(Emphasis added)
233 It should be noted that in this passage, the Lord Justice-Clerk held, among other things, that an inferior court judge or magistrate may be liable where he or she "proceeds knowingly to pronounce a sentence which is not competent" under the relevant enactment. In In re McC, a decision that will be addressed in more detail later in these reasons, the House of Lords approved the judgment and reasoning of the court in M'Creadie v Thomson, save for the word "knowingly" in that sentence. Their Lordships could "not see how ignorance of the terms of the statute regulating their powers of sentence in any particular case could afford justices any defence" (at 1 AC 548-549 per Lord Bridge).
234 As noted earlier, the importance of the judgment in M'Creadie v Thomson is that it is clear authority for the proposition that an inferior court judge or magistrate may be liable "not merely for acting without jurisdiction, but for doing an act in excess of the jurisdiction he was called upon to exercise".
235 Further support for that proposition may be found in the judgment in O'Connor v Isaacs [1956] 2 QB 288; 2 All ER 417.
236 In O'Connor v Isaacs, the plaintiff's wife took out a summons under a particular enactment alleging that the plaintiff had been guilty of persistent cruelty and seeking, on that basis, a separation and maintenance order. At the hearing of the summons, the magistrates made an order that the plaintiff pay his wife maintenance, even though the allegation of persistent cruelty had not been proved. The plaintiff fell into arrears in paying the maintenance and as a result was imprisoned. The plaintiff commenced proceedings against the magistrates who made the maintenance order seeking damages for false imprisonment. While that action ultimately failed because of a limitation issue, it is readily apparent that, but for that issue, the action would have succeeded.
237 It was conceded before the trial judge, Diplock J, that the magistrates had no jurisdiction to make the maintenance order because a finding that the plaintiff was guilty of a matrimonial offence (relevantly, that he was guilty of persistent cruelty) was a condition precedent to their making of that order. It appeared to be accepted that the magistrates had made a bona fide mistake of law in that regard. In addressing the question whether the magistrates could be held personally liable in respect of the plaintiff's imprisonment, that imprisonment having flowed from the making of the maintenance order, Diplock J referred, with apparent approval, to Houlden v Smith, and continued (at 2 QB 304):
The law, therefore, appears to me to be clear that where a magistrate or any judge of an inferior court assumes jurisdiction where he has no jurisdiction as a result of a mistake of law, he is liable in trespass for acts done as a result of that erroneous assumption of jurisdiction, and if his mistake of law appears upon the face of the record itself, the setting aside of the order is not a condition precedent to the action at common law. In the present case it appears upon the face of the record that the magistrates made the order without jurisdiction.
238 It should be emphasised that it is clear that the magistrates had jurisdiction to entertain the summons. If they had made a finding concerning the alleged matrimonial offence, they would also plainly have had jurisdiction to make the maintenance order in question. Their error of law, it appears, was to proceed on the basis that they could make the order without first making a finding concerning the alleged matrimonial offence.
239 An appeal from Diplock J's judgment was dismissed, though not surprisingly the appeal focussed on the limitation issue.
240 The decisions in Calder v Halket, Houlden v Smith and O'Connor v Isaacs were referred to, albeit fairly fleetingly, in the judgment of Crisp J in the Supreme Court of Tasmania in Gerard v Hope [1965] Tas SR 15. The plaintiff in that case was convicted in a court of petty sessions of failing to lodge a tax return. That conviction was entered in the plaintiff's absence as he had not been personally served. The magistrate imposed a fine in respect of the conviction. Importantly, the magistrate did not order that the plaintiff be imprisoned if he failed to pay the fine, or make any order of committal. It would appear, however, that a clerk informally and incorrectly endorsed the court file with a note suggesting that the plaintiff be imprisoned for 14 days if he defaulted in paying the fine. At about this point in time, the plaintiff became aware of the proceedings. He contacted the Taxation Department and made appropriate arrangements in respect of his tax affairs. The Taxation Department wrote to the court and requested a stay of the proceedings against the plaintiff, however that letter was mislaid by the court. When the fine remained unpaid after the time for payment expired, the clerk who had entered the incorrect endorsement on the court file, purporting to act as a justice of the peace, issued a warrant of commitment in respect of the unpaid fine. The plaintiff was subsequently arrested and gaoled pursuant to the warrant. He subsequently sued the justice of the peace, the constable who arrested him and the controller of prisons for false imprisonment. They were all held liable.
241 The decision of Crisp J in respect of the liability of the constable and the gaoler will be discussed in more detail later. As for the justice of the peace, he endeavoured to defend the action by arguing that there were various statutory sources of jurisdiction which supported his issuing of the warrant. Those arguments all failed. While some of Crisp J's reasoning is, with respect, somewhat difficult to follow, it would appear that all of the defences advanced by the justice, both at common law and under statute, ultimately failed because his Honour found that the issuing of the warrant was "wholly beyond the jurisdiction of the justice" (at 53). Indeed, this was a case in which it would appear that the justice did not have "jurisdiction in respect of the subject matter" (at 62).
242 The next judgment which is necessary to consider is the judgment of the House of Lords in In re McC. This is a case of particular importance.
243 The facts in In re McC were fairly straightforward. The respondent, a juvenile, was charged with various offences. He appeared unrepresented before the appellants, the resident magistrate and two lay justices, in the Belfast Juvenile Court. He pleaded guilty and the appellants made an order which amounted to a sentence of detention. An enactment in Northern Ireland provided that, relevantly, a magistrates' court could not pass a sentence of detention on an offender who was unrepresented and had not previously been sentenced to that punishment unless the offender either applied for legal aid, or having been informed of his right to apply for legal aid, refused or failed to apply. The Divisional Court in Northern Ireland (Queen's Bench Division) subsequently quashed the detention order on the basis that it was not lawfully made because the respondent had not been informed of his right to apply for legal aid. The respondent commenced an action for damages for false imprisonment against the appellants.
244 The question of law that was ultimately considered by the House of Lords was whether the action for false imprisonment could proceed against the appellants. That question in turn depended on whether the action was precluded by s 15 of the Magistrates' Courts (Northern Ireland) Act 1964 (NI) (Magistrates' Court Act), which provided:
No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.
(Emphasis added)
245 Without getting into the complexities of the matter, it was broadly accepted that s 15 of the Magistrates' Court Act gave statutory force to, and operated in much the same way as, the "old common law rule that justices were civilly liable for actionable wrongs suffered by citizens pursuant to orders made without jurisdiction" (see 1 AC 541F per Lord Bridge). The critical question was whether the detention order made by the appellants was made "without jurisdiction or in excess of jurisdiction".
246 The House of Lords held that the action could proceed because the appellants had acted without or in excess of jurisdiction.
247 The lead judgment was delivered by Lord Bridge. The other members of the House of Lords relevantly agreed with Lord Bridge's reasons, though Lord Templeman provided some additional reasons. In considering the meaning of the words "without jurisdiction or in excess of jurisdiction" in s 15 of the Magistrates' Court Act, Lord Bridge noted the "many different shades of meaning" that the word "jurisdiction" has depending on the context in which it was used (at 1 AC 536B-C). His Lordship eschewed reliance on the "innumerable certiorari cases" in construing the expression "without or in excess of jurisdiction" and said that a "safer guide" was the "few cases since 1848 where persons exercising a limited jurisdiction have been held liable in damages for consequences flowing from a purported exercise of the jurisdiction held to be beyond the relevant limit" (at 1 AC 544F).
248 Lord Bridge then considered a number of cases, including Houlden v Smith, in which damages had been awarded against inferior court judges or magistrates in circumstances where the judge or magistrate had no "jurisdiction of the cause" (at 1 AC 546A). His Lordship then said (at 1 AC 546E-547B):
But once justices have duly entered upon the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass. As Johnston v. Meldon, 30 L.R.Ir. 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction: Rex (Martin) v. Mahony [1910] 2 I.R. 695; Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128. It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question. I take this view because, as I have intimated earlier, I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case [1969] 2 A.C. 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of section 15 of the Northern Ireland Act of 1964 or section 45 of the Act of 1979.
Justices would, of course, be acting "without jurisdiction or in excess of jurisdiction" within the meaning of section 15 if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods would not, in my opinion, necessarily expose the justices to liability in damages.
249 The following propositions flow from this passage. First, justices can lose their protection from civil liability for trespass even in cases where they have jurisdiction of the cause, or subject-matter jurisdiction. Second, in such cases, something "quite exceptional" must occur to deprive the justice of their protection. Third, justices would be acting "without jurisdiction or in excess of jurisdiction" if in the course of the proceeding they were "guilty of some gross and obvious irregularity of procedure".
250 Lord Bridge noted (at 1 AC 547C-D) that there was no question that the appellants had jurisdiction to entertain the proceedings against the respondent. His Lordship then considered a number of cases where inferior court judges or magistrates who had jurisdiction of the cause had nevertheless been found to be liable for damages for trespass or false imprisonment on the basis that they had acted in excess of jurisdiction. The cases considered by Lord Bridge, with apparent approval, in that context included Groome v Forrester, M'Creadie v Thomson and O'Connor v Issacs. Lord Bridge concluded that those cases established the "the clear principle that justices, though they have 'jurisdiction of the cause' and conduct the trial impeccably, may nevertheless be liable in damages on the ground of acting in excess of jurisdiction if their conviction of the defendant before them or other determination of the complaint against him does not provide a proper foundation in law for the sentence imposed on him or order made against him and in pursuance of the sentence or order he is imprisoned or his goods are seized" (at 1 AC 549C-D).
251 Lord Bridge concluded that, despite having had jurisdiction of the cause, the appellants nevertheless had acted without jurisdiction, or in excess of jurisdiction, because the statutory precondition to the imposition of the detention order (informing the respondent of his right to apply for legal aid) was essential to support the appellants' jurisdiction to impose the detention order.
252 As noted earlier, the other members of the House of Lords, including Lord Templeman, agreed with Lord Bridge's reasons, though Lord Templeman gave some additional reasons. His Lordship reviewed the authorities, including Marshalsea, Gwinne v Poole, Groome v Forrester, Calder v Halket, Houlden v Smith, M'Creadie v Thomson, and O'Connor v Issacs and expressed the following opinion (at 1 AC 558D-G):
In my opinion the authorities disclose that a magistrate is not liable in damages for the consequences of an unlawful sentence passed by him in his judicial capacity in a properly constituted and convened court if he has power to try the offence and the offender, duly convicts the offender of the offence and imposes a sentence which he has power to impose for the offence and on the offender. If the magistrate fails to convict the offender of the offence or if he imposes a sentence which he has no power to impose on the offender for the offence he acts without jurisdiction and if the sentence results in imprisonment, is liable to the accused in a civil action for damages for false imprisonment.
If in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty of some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed but the magistrate acting as such acts within jurisdiction. Similarly if the magistrate after a lawful trial imposes a sentence which he is authorised to impose on the defendant for the offence, but follows a procedure which is irregular, the sentence may be quashed but the magistrate acts within jurisdiction.
253 While Lord Templeman also agreed with Lord Bridge's reasons, his Lordship's separate reasons might appear, at least at first blush, to be slightly narrower than Lord Bridge's. That is because his Lordship expressed the opinion that a magistrate who "misbehaves or does not accord the accused a fair trial, or is guilty of some other breach of the principles of natural justice" nevertheless relevantly acts within jurisdiction. It is, however, possible to reconcile that opinion with Lord Bridge's reasons because Lord Bridge's opinion was that only "gross and obvious" irregularities of procedure or breaches of the rules of justice would support a conclusion that a magistrate had acted without or in excess of jurisdiction. In any event, as all of the other members of the House of Lords agreed with Lord Bridge's reasons, his opinion reflects the majority position.
254 The decision in In re McC is highly persuasive authority in relation to the metes and bounds of the judicial immunity available to inferior court judges, including in Australia. While strictly speaking the case may have involved the construction of a form of statutory immunity, it is clear that the House of Lords effectively proceeded on the basis that the statutory immunity in question reflected the position at common law. It was on that basis that the common law authorities were closely considered and analysed. I was not taken to any case, in England or Australia, which doubted Lord Bridge's careful analysis of the authorities and his Lordship's conclusion concerning the scope of an inferior court judge's immunity.
255 There is another aspect of In re McC that is of some importance. That is whether the distinction between superior and inferior courts in respect of judicial immunity continues to apply. That issue is considered separately later in these reasons.
256 The decision in In re McC was followed and applied by the High Court of England and Wales in R v Manchester City Magistrates' Court; Ex parte Davies [1988] 1 WLR 667; 1 All ER 930. In that case, a rating authority issued a distress warrant to the applicant in respect of outstanding rates and, upon non-payment, applied for a warrant of committal in the Manchester City Magistrates' Court. The relevant legislation provided that, before issuing a warrant of committal, it was necessary for the court to be satisfied that the applicant's failure to pay the rates was due to culpable neglect. The magistrates issued a warrant of committal and the applicant was imprisoned. That decision was subsequently quashed on the basis that, while the magistrates' were of the opinion that the applicant was guilty of culpable neglect in failing to follow his accountant's advice, they had no regard to the necessity of it being established that the applicant's failure to pay the rates was due to that culpable neglect. The applicant claimed damages from the magistrates. The main question for the court was whether the magistrates had exceeded their jurisdiction.
257 Justice Simon Brown considered and applied the decision in In re McC and concluded as follows (at 1 AC 673A-B):
Although I would not go so far as to characterise the insufficiency of the justices' inquiry here as a gross and obvious irregularity, I believe it right to equate the justices' plain failure to address themselves to the question whether or not the applicant's failure was 'due … to his culpable neglect' within the plain meaning of [the relevant enactment] with the justices' failure in In re McC. to satisfy the requirements of the Irish order.
258 It can be seen that Simon Brown J picked up and applied Lord Bridge's formulation of one of the categories of cases in which an inferior court justice loses judicial immunity. His Honour's decision was affirmed on appeal: R v Manchester City Magistrates' Court Ex parte Davies [1988] 3 WLR 1357; [1989] 1 All ER 90. Lord Justice O'Connor concluded that the need to find that the applicant's non-payment of the rates was due to culpable neglect was "a statutory condition precedent to the imposition of a sentence of imprisonment and its fulfilment [was] essential to support the justices' jurisdiction to impose it" (at 3 WLR 1363). Similarly, Neill LJ held that a "statutory condition precedent to the exercise by the justices of their power to issue a warrant under [the relevant enactment] was not satisfied" and that the justices' failure to examine whether the applicant's non-payment of the rates was due to culpable neglect was not "merely a procedural irregularity" (at 3 WLR 1367).
259 Mr Stradford identified a number of other cases where magistrates or inferior court judges had been held liable for actions in trespass, false imprisonment or similar torts in circumstances where they had made orders, or issued warrants in good faith (or at least without malice) but without or in excess of their jurisdiction. Those cases included: Scavage v Tateham (1600) Cro Eliz 829; 78 ER 1056; Smith v Bouchier (1734) 2 Str 993; 93 ER 989; Davis v Capper (1829) 10 B & C 28; 109 ER 362; Lindsay v Leigh (1848) 11 QB 455; 116 ER 547; Willis v Maclachlan (1876) 1 Ex D 376; Agnew v Jobson (1877) 13 Cox CC 625 and Polley v Fordham (No 2) (1904) 91 LT 525. It is, in light of the preceding discussion, unnecessary to give any detailed consideration to any of these cases. It suffices to note that they provide further support for the proposition that at common law, an inferior court judge who makes an order, or issues a warrant, in circumstances where they did not have jurisdiction to do so, is not protected from suit by judicial immunity, except where they did not know, or have the means of knowing, the facts which deprived them of their jurisdiction.
260 Mr Stradford also relied on the decision of Owen J in the Supreme Court of New South Wales in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81. In that case a personal costs order was made against a magistrate because the magistrate denied a party procedural fairness and "disregarded his judicial position" (at 84). That case, however, does not greatly assist in resolving the issue in the present case. The reasoning of Owen J does not specifically address the principles concerning judicial immunity.